The zonal
Commissions recommended, among other things, that a special unit be established
in the Attorney General’s Department to study the evidence unearthed by the
Commissions indicative of the persons responsible for disappearances, and ensure
that such persons are brought to book. Consequently, in July 1998, a Missing
Persons Unit (MPU) was established in the Attorney General’s Department with
these functions. It had to examine about 3,000 cases that the zonal Commissions
had investigated where prima facie evidence of responsibility was
available. The unit is headed by a Senior State Counsel and consists of five
attorneys-at-law recruited on contract. It comes under the direct supervision of
the Attorney General and the Senior Additional Solicitor General in charge of
the Criminal Division of the Department. Three State Counsel assist the unit.

The MPU has
categorised the cases as follows: those in which indictments could be filed
straight away before the High Court; those which needed further investigation to
tighten up the evidence; and those where the evidence was inadequate to
establish proof beyond reasonable doubt, but was adequate to initiate
disciplinary proceedings.

The MPU has
initiated legal proceedings against over 500 police and armed forces personnel,
but it will take several years for these cases to reach a conclusion. However,
even though the provisions of the Establishment Code make it mandatory for the
heads of departments to interdict these officers from service and commence
disciplinary proceedings, no such action has been taken either by the Police or
the Army Headquarters. However, in respect of some gazetted officers,[1]
the Public Service Commission (PSC) has taken disciplinary action. Discreet
inquiries made by the writer revealed that the PSC has not taken action because
neither the Police nor the Army Headquarters have forwarded the names of those
concerned to it. Consequently, these personnel continue in service while their
cases are pending in the courts. It is yet to be seen whether any of these cases
will result in a conviction.

The cases in
which legal action has been initiated are only those where there was already
direct evidence of responsibility for abduction. Those where circumstantial
evidence was available have not yet been taken up, because they would require a
greater effort by the prosecutor.

It should be
noted that causing disappearances is not a punishable offence under Sri Lanka’s
Penal Code. Thus, the most serious charge that can be levelled against persons
responsible for disappearances is abduction with intent to murder.[2]
As bodies have not been found in most cases of disappearance, it is very
difficult to sustain a charge of murder.

Most of the
cases that have been filed so far are against junior officers. This is because
the Disappearances Investigation Unit within the Police Department (see below)
simply does not return files relating to senior officers to the (MPU), claiming
that its investigations are not yet complete. The MPU is then helpless to
expedite action in these cases. The ‘delays’ on the part of the Police
Department are said to result from ‘considerations of brotherhood’, which leads
the investigators to protect brother officers, especially the seniors at the
expense of the juniors.

It has been
suggested that the establishment of a Special Unit and a Prosecutors’ Office, on
the model of the Bribery Commission would help to overcome this problem.
However, this suggestion has not received serious consideration.

[1]A category of officers whose
appointments take effect with a gazette notification.

[2]
Section 355 of the Penal Code, Cap 25 of the Legislative Enactments of Sri
Lanka